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The Department of Commerce,
Bureau of Industry and Security

The Deemed Export Laws

The Department of Commerce, Bureau of Industry and Security (“BIS”) has the authority to control the release of technology or source code (“technology”) for ANY technology that is subject to the Export Administration Regulations (EAR).

Technology is defined by the Export Administration Regulations (“EAR”) (which are administered by BIS) as:

  • Specific information necessary for the development, production or use of a product.
The “release” of technology is controlled when it is:
  • made available to foreign nationals, in the United States OR abroad, for VISUAL inspection (such as reading technical specifications, plans, blueprints, EMAIL, etc.)
  • exchanged orally (such as a seminar, or one-on-one conversations), or
  • made available by practice or application under the guidance of persons with knowledge of the technology.
The deemed export rule controls technology in much the same way that it controls the final product that would be made from it.

If the final product would be subject to a possible export license requirement under the EAR, then the technology would also. You would then have to consider the release of the technology to the foreign national as a release of the technology to their home country. So, for example, if you have an employee living in France, working for you in your plant, and you want to release technology that would enable him to make a product such as Triethanolamine (which is controlled for CWC concerns under ECCN 1C350.a.51 of the EAR), and he is a native of Afghanistan, you would have to apply for an export license as if you were exporting this to Afghanistan.

For the purposes of the deemed export rule, a foreign national would be subject to these controls, UNLESS:

  • They are granted permanent residence in the US (by a green card)
  • They are granted US Citizenship
  • They are granted “protected person” status (mainly political asylum or political refugees)
  • They are granted permanent residence to a country that is NOT subject to a licensing requirement such as Canada.
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Funded in part through a cooperative agreement with the U.S. Small Business Administration. The Ohio SBDC program is also funded in part by the Ohio Department of Development. All opinions, conclusions or recommendations expressed are those of the author(s) and do not necessarily reflect the views of the SBA. Reasonable accommodations for persons with disabilities will be made if requested at least two weeks in advance. For arrangements, call the Ohio SBDC at 614-466-2711 or (800) 848-1300 ex. 6-2711.
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